Now I'm all for people complying with lawful orders; you do not have the right to refuse a lawful police order. But this case gets at the heart of non-compliance. What do you do when somebody does not comply?
Cops will be quick to justify use of force for non-compliance. I don't have a quibble with that. But what kind of force is reasonable? Lethal force is not OK. Hands-on is OK. But what about the taser? Sometimes you need to take a step back and ask what kind of society we want to live in.
Personally, I don't want to live in a society where non-threatening people -- whether they are criminally stupid or not is beside the point -- routinely get zapped by government agents.
(Just think, this is why our Founding Fathers were wise enough to include the right against self-incrimination in the 5th Amendment. Were it not for the right to remain silent, police could and would use tasers in routine interrogations.)
Tasers have been used -- shamefully, I might add -- against naked people, the homeless, a legless man in a wheelchair (you can't make this shit up), a 76-year-old man driving a tractor, a 10-year-old girl, a guy running on a baseball field (I thought that one was OK), the "Don't tase me, bro" dude, a guy who didn't understand English, and the misuse of a taser led to a good police offier's suicide. If you scroll down to the bottom of the Atlantic piece, you can see lots of bad taser-use videos.
Now there are good uses for the Taser, and tasers have been shown to reduce injuries. (Serious question: how many injuries prevented per taser-related death is acceptable?) But none of this, not even National Institute of Justice recommendations, justify the massive overuse of tasers in law enforcement. Police are trained to use tasers for non-compliance. In many of those above instances, officers were acting in accordance with their training and regulation. And then the same officers were punished when the craziness of such training and policy becomes apparent.
What I like about this recent case is that I can see the complete absolutely correct unassailable logic... for both sides of the case.
Here's what happened: a jogger, Gary Hesterberg, is stopped by a law-enforcement officer for an infraction. Hesterberg doesn't have ID and says his last name is Jones. He then fails to comply with a lawful order and resists arrest. Finally, when attempting to flee, Hesterberg gets tased and arrested. So clear cut. So logical. But the problem with such a description is that no matter how logical each step is, at some point it is absurd -- to use phrasing of the court it is not "objectively reasonable" -- to use a Taser against a jogger violating a leash law!
In court, the government conceded the violation was minor. Lying to police officer and failure to comply are less minor, but, said the court, "not inherently dangerous or violent." Still, all this and the jogger's resistance to arrest "weighs in the government's favor." The arrest was valid. The court accepted the government's claim that "using communication skills was not a viable alternative to effect Hesterberg's arrest." Nor was arresting the jogger at his house -- he gave his real address but said his last name was Jones -- given the jogger's willingness to lie. The jogger said he wasn't even certain that green-uniformed Federal Park Ranger was law enforcement. The court said, tough titty, kid. And the court also understood that the jogger could have avoided this whole mess had he simply A) given his real name or B) complied with lawful orders.
And court understands that the decision made by the officer needs only be reasonable "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." This makes allowance for the fact that "police officers are often forced to make split-second judgments."
Now given all this, I would think the court is about to offer unqualified support for the government's position and taser use. From Tennessee v. Garner (cops can't shoot a fleeing felon), when know the government interest in stopping a fleeing suspect is not absolute:
The Court finds that the intrusion on Hesterberg’s Fourth Amendment interest to be free from being tased greatly outweighs the minimal governmental interest in apprehending him for his violations of the law. Cavallaro’s use of her taser on Hesterberg was therefore unconstitutional.Did you get that? Here it is again: "The government’s interest in apprehending Hesterberg is simply too low to justify his tasing even if he willfully disregarded such a warning." Daaaaamn.
Weren't listening? One last time: "The Court is not persuaded that the need to identify Hesterberg for his low-level violations of law justify Cavallaro’s use of the taser, even if the taser was the only tool remaining to collect Hesterberg’s identifying information." Boo-ya.
So what are you supposed to do? Let him jog away? Uh, yes. This is news to me and to most cops,
Let him flee. Even if you have less-lethal weaponry at your disposal.
This requires a seismic shift in the minds of law enforcement. Under certain circumstances sometimes it is OK, permissible -- even required -- to simply allow a person under arrest to flee. Cops will hate this, but it is a common sense, pro-police discretion, and pro-4th Amendment decision. It is worth remembering that though Garner was not "pro-police," it turned out great for cops: scores fewer officers shot and killed!
The judge, and this is important, even recognized that her decision goes against the regulations of the law enforcement agency that would permit tasing a 9-year-old girl or an 8-month pregnant woman: "The Court cannot imagine a rational fact-finder that would find it reasonable to tase a nonviolent and nonthreatening nine-year-old or eight-month-pregnant woman fleeing from non-serious misdemeanors." Good.
The jogger got $50,000.
This certainly puts the rank-and-file in an awkward position. Their departmentally justified use-of-force policy is deemed, after the fact, to be unconstitutional and negligent. Once again somebody is telling police what not to do without any clear guidance as to what to do.
Since you know it will take ages for police departments to catch up. I wouldn't mind seeing a few police officers sue their own police department for policies that encourage or require officers to violate their oath to the constitution. "Failure to obey" doesn't mean you get to use every toy on your belt. Police need to use their intelligence and common sense to understand the totality of the circumstance. I've got no problem with that. Because police generally have, despite what some may think, plenty of intelligence and common sense. Officers just need support from above and permission to use that discretion.
I'm curious what cops out there might think. If you think this decision is absurd -- if you think it should be OK for a cop to tase a minor offender fleeing arrest -- at what kind of weaponry would you draw the line? Would rubber bullets be OK? Dog? Tear gas? Flash grenade? Sound cannon? Anything short of the lethal force prohibited by Garner? Or was Garner wrongfully decided?
In an age where more and more less-lethal weaponry is in the hands of police, I think it's important to clarify what kind of force is reasonable. For a leash-violation, a taser crosses the line.
[Here's a pdf of the court decision by the Federal Northern District of California case 13-cv-01265-JSC.]
[Also, with regards to previous posts on race and police, it seems relevant to point out that the jogger was white. Had the jogger been black, I'm sure this would be seen as a racial incident and some people would claim, "Police never would have stopped a white jogger, much less tased him!" And this despite seeing again and again that police sometimes overreact to people of all races.]